De facto and Same Sex Couple Property Rights

by Snodgrass Legal

Can I claim property if my relationship breaks up?

When couples who have been in a de facto relationship, including same sex couples, decide to end their relationship issues of property division can arise. This can occur when a couple has purchased property together such as a home.

If this has happened then it is possible to go to court either to have the property sold and split 50/50, or to seek a greater share than just half. If you can show you have contributed a greater share towards the property you may be able to claim for this.

Does it matter if I am not on the time to the home?

A person may sometimes be able to claim a share of a property even if they are not on the title. For example some couples may purchase a home together but for various reasons only one name goes on the title. If the other person can show that they have made contributions to the property such as sharing mortgage payments, rates or bills, this can support a claim for a share of that property.

Contributions may also include arrangements where one person’s income goes entirely towards the home while the other’s is used for day to day expenses.

A claim may similarly arise if one person has made non-financial improvements to the property, such as doing renovations, maintenance, gardening, or decorating.

Often the longer the relationship lasted the greater the potential is to claim a share of the property by the partner who is not on the title, even when the property was owned by the other person before the relationship began.

Do I go to the Family Court for a de facto property claim?

At present the Family Court only deals with property matters concerning married couples, although there are ongoing rumours and hints the Family Court may be changed to deal with de facto property issues in the future.

In Victoria the Courts that deal with de facto property issues involving real estate are the County and Supreme Courts. If both of you are on the title and one wishes to sell on the basis of a 50/50 split this can also be done in the Victorian Civil and Administrative Tribunal.

What is a caveat and do I need one?

A caveat is a legal warning or notice that can be put on the title to someone’s land telling anyone interested in buying or lending on that property that you are claiming a share of it. This is done to prevent the property being sold without you getting paid out your share.

To do this a caveat form has to be completed and lodged at the Titles Office. A solicitor can do this for you. It is a good idea to get advice from a lawyer about whether to lodge a caveat particularly if you fear the property may be for sale.

While it can be very helpful to file a caveat to protect your share of a property you should see a lawyer before you do this as filing caveats without a proper legal basis could lead to costly legal proceedings being brought against you by the owner of the land.

Are there time limits to bring a claim for de facto property?

In Victoria there is a time limit for bringing a de facto property claim of two years from the date of the break up. However this can be extended in some circumstances.

If you believe you have a claim whether inside or outside the two year time limit you should discuss this with a solicitor as soon as possible.

This time limit does not apply if you are both on the title to the property and are simply seeking a 50/50 split.